Bolden v. Asbury Automotive Group

Filing 10

OPINION AND ORDER adopting Magistrate Judge Russell G. Vineyard's Final Report and Recommendation 8 and dismissing this action. Signed by Judge William S. Duffey, Jr on 9/21/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GEORGE BOLDEN,
Plaintiff,
v.

1:17-cv-2369-WSD

ASBURY AUTOMOTIVE GROUP
and NALLEY NISSAN OF
ATLANTA,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation [8] (“R&R”), recommending that this action be
dismissed under 28 U.S.C. § 1915(e)(2)(B).
I.

BACKGROUND
A.

Facts

This is an employment discrimination case. Plaintiff George Bolden
(“Plaintiff”) appears to allege that he was hired, in October 2016, by Defendants
Asbury Automotive Group and Nalley Nissan of Atlanta (together, “Defendants”).
Plaintiff states that, during his employee orientation, he “signed paperwork stating
how [he would] deal with customer[s] [and] what [he could] and [could not] do,”

but once he “started at the dealership all of the practices that [he] signed on stating
that [he] wouldn’t do [were] being done and asked for [him] to also do by
management.” (Am. Compl. at 7). Plaintiff alleges that, on one occasion, he
“was working a deal with a customer” on a “$5,999 [vehicle] that was marked up
for $8,999.” (Am. Compl. at 7). Plaintiff was told, presumably by another staff
member, to offer the customer a “monthly payment of almost $400” with
“$1000 down.” (Am. Compl. at 7). The customer said Plaintiff “was cheating him
and left.” (Am. Compl. at 7). Plaintiff, at the direction of his manager, offered the
customer a lower monthly payment option, which the customer also rejected.
(Am. Compl. at 7). Plaintiff told his manager that he wanted to talk to “human
resources because [he] was told not to do that.” (Am. Compl. at 7).1 The next day,
Plaintiff spoke with Defendants’ general sales manager, who told him “he [would]
handle it.” (Am. Compl. at 7).
Defendants’ finance manager later sold a new Nissan Versa vehicle to a
customer who had requested a used Nissan Altima. (Am. Compl. at 7-8). The
customer called the next day and told Plaintiff he “didn’t want th[e] car.” (Am.
Compl. at 8). At the direction of Defendants’ general sales manager, Plaintiff told
the customer, “don’t worry about it, to drive [the] car for [the] weekend and just
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Plaintiff does not clearly identify what he was told not to do.
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come in on Monday with mom [and Defendants will] redo the deal.” (Am. Compl.
at 8). When the customer arrived on Monday, Defendants’ finance manager
instructed Plaintiff to tell the customer that, “because the deal was already funded,”
the customer could only trade the Nissan Versa for another vehicle. (Am. Compl.
at 8). Plaintiff reported this incident to his general sales manager, told him “it ain’t
right,” and said he wanted to speak to human resources because he did not “want to
get accused of cheating customers.” (Am. Compl. at 8-9). The general sales
manager told Plaintiff that, if he did not “want to tell the customer that the other
deal was already funded, [the general sales manager could] get someone else to
finish [the] deal for [him].” (Am. Compl. at 8-9). A few days later, the general
sales manager told Plaintiff that the general manager thought he was not “a good
fit” and that he should join a different “dealership under the Nalley brand.”
(Am. Compl. at 9). Plaintiff contacted a human resources employee, who told him
he “didn’t do what [he] was supposed to do, that [he was] being fired and put on
the no rehire list.” (Am. Compl. at 9). “Multiple write ups [then] showed up in
[Plaintiff’s] file to cover the company.” (Am. Compl. at 9). Plaintiff claims his
employment was terminated because he “talked about addressing HR and then [he]
was set up with HR while doing [his] job.” (Am. Compl. at 9).

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B.

Procedural History

On June 23, 2017, Plaintiff filed his Application for Leave to Proceed In
Forma Pauperis (“IFP Application”) to which he attached his Pro Se Employment
Discrimination Complaint Form [1.1] (“Initial Complaint”). The Initial Complaint
asserted a Title VII retaliation claim against Defendant Asbury Automotive Group.
On July 3, 2017, the Magistrate Judge granted Plaintiff’s IFP Application,
identified several deficiencies in Plaintiff’s Initial Complaint, and ordered Plaintiff
to file a properly pleaded amended complaint “or face dismissal of this action.”
([2] at 7). On August 1, 2017, Plaintiff filed his Amended Pro Se Employment
Discrimination Complaint Form [7] (“Amended Complaint”), asserting a Title VII
retaliation claim against Defendants Nalley Nissan of Atlanta and Asbury
Automotive Group. Plaintiff’s Amended Complaint contains allegations similar to
those in his Initial Complaint. On August 8, 2017, the Magistrate Judge screened
Plaintiff’s Amended Complaint and issued his R&R, recommending that this
action be dismissed, under 28 U.S.C. § 1915(e)(2)(B), for failure to state a claim.
Plaintiff did not file objections to the R&R.

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II.

DISCUSSION
A.

Legal Standards
1.

Frivolity Review under 28 U.S.C. § 1915(e)(2)(B)

“Under 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss an
in forma pauperis action if the court determines that the action is ‘frivolous or
malicious; fails to state a claim on which relief may be granted; or seeks monetary
relief against a defendant who is immune from such relief.’” Thibeaux v. U.S.
Atty. Gen., 275 F. App’x 889, 892 (11th Cir. 2008) (quoting 28 U.S.C.
§ 1915(e)(2)(B)). “Failure to state a claim under § 1915(e)(2)(B)(ii) is governed
by the same standard as dismissal for failure to state a claim under Fed. R.
Civ. P. 12(b)(6).” Wilkerson v. H&S, Inc., 366 F. App’x 49, 51 (11th Cir. 2010)
(citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)). To avoid
dismissal under this standard, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Mere “labels and conclusions” are insufficient.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
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Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] [plaintiff’s]
claims across the line from conceivable to plausible.” Id. at 1289 (quoting
Twombly, 550 U.S. at 570).
Plaintiff filed his Amended Complaint pro se. “A document filed pro se is
to be liberally construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro se plaintiff must
comply with the threshold requirements of the Federal Rules of Civil Procedure.
See Beckwith v. Bellsouth Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir.
2005). “Even though a pro se complaint should be construed liberally, a pro se
complaint still must state a claim upon which the Court can grant relief.”
Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007). “[A] district court does
not have license to rewrite a deficient pleading.” Osahar v. U.S. Postal Serv.,
297 F. App’x 863, 864 (11th Cir. 2008).
2.

Magistrate Judge’s Report and Recommendation

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
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judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Plaintiff did not file
objections to the R&R, and the Court thus reviews it for plain error.
B.

Analysis

Plaintiff claims he was terminated in retaliation for his complaints to
Defendants’ human resources department, in violation of Title VII of the Civil
Rights Act of 1964. Under Title VII, it is unlawful “for an employer to
discriminate against any of his employees . . . because [the employee] has opposed
any practice made an unlawful practice by [Title VII], or because he has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). To adequately
plead a Title VII retaliation claim, “plaintiff must allege that (1) he engaged in
statutorily protected activity, (2) he suffered a materially adverse employment
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action, and (3) a causal relationship between the two events exists.”
Palmer v. McDonald, 624 F. App’x 699, 702 (11th Cir. 2015). “‘Statutorily
protected expression’ refers to an expression in opposition to some practice that is
unlawful under Title VII, such as an internal complaint of racial discrimination or
sexual harassment.” Salazar v. Hostmark, No. 1:12-CV-145-JRH-WLB, 2012 WL
6128435, at *3 (S.D. Ga. Nov. 20, 2012). “Unfair treatment, absent discrimination
based on race, sex, or national origin, is not an unlawful employment practice
under Title VII.” Coutu v. Martin Cty. Bd. of Cty. Comm’rs, 47 F.3d 1068, 1074
(11th Cir. 1995).
The Magistrate Judge found that Plaintiff fails to state a retaliation claim
under Title VII because “he has not alleged that his [internal] complaints involved
a protected characteristic under Title VII, but instead it appears he was
complaining about the dealership allegedly ‘cheating’ customers.” (R&R at 6).
The Magistrate Judge previously identified this deficiency in Plaintiff’s Initial
Complaint and warned Plaintiff that his action would be dismissed if the deficiency
was not addressed. Plaintiff’s Amended Complaint contains the same deficiency
because, like the Initial Complaint, it alleges that “Plaintiff complained about
general unfair treatment, not sex discrimination or any other type of discrimination
prohibited by Title VII.” Dubose v. SYSCO Corp., No. 1:10-CV-02952-WSD,
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2011 WL 1004675, at *2 (N.D. Ga. Mar. 18, 2011). The Magistrate Judge
recommends that this action be dismissed under 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim. The Court finds no plain error in the Magistrate Judge’s
findings and recommendations, and this action is dismissed. See Enadeghe v. Ryla
Teleservices, Inc., No. 1:08-CV-3551-TWT, 2010 WL 481210, at *10 (N.D. Ga.
Feb. 3, 2010) (dismissing a pro se employment discrimination action “[b]ecause
Plaintiff’s Complaint still fails to state a claim after being given a chance to amend
her Complaint to correct the deficiencies in the Complaint”).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard’s

Final Report and Recommendation [8] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED.

SO ORDERED this 21st day of September, 2017.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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